Texas Bar Journal - February 2015

Privacy Policy

Pat Garza 2015-01-26 00:38:29

Riley v. California and cellphone searches in schools.
On June 25, 2014, the U.S. Supreme Court, in Riley v. California,1 unanimously ruled that police generally may not search the cellphones of people they arrest without first getting a search warrant, stating that these powerful devices are unlike anything else police may find on someone they arrest. In writing the opinion for the court, Chief Justice John Roberts cited a 1926 case for perspective:
In 1926, Learned Hand observed (in an opinion later quoted in Chimel) that it is “a totally different thing to search a man’s pockets and use against him what they contain, from ransacking his house for everything which may incriminate him.” United States v. Kirschenblatt, 16 F. 2d 202, 203 (CA2). If his pockets contain a cell phone, however, that is no longer true.2
Justice Roberts concluded:
With all they contain and all they may reveal, they hold for many Americans “the privacies of life,” Boyd, supra, at 630. The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought. Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple—get a warrant.3
What effect, if any, does that holding have on searches of cellphones in public schools? We know that public school officials can conduct searches when there are reasonable grounds—not probable cause—to believe that the search will produce an illegal item or an item that is in violation of a school policy or rule.4 So do teachers and school administrators have the authority to search and inspect the contents of cellphones?
Students do not leave their constitutional rights at the schoolhouse door.5 When the courts set standards for searches at school they try to balance several things. First and foremost, they understand that the school must safeguard all students. They also understand that attending school is mandatory, so a student can’t refuse to attend school to avoid a search based on less than probable cause—or, as we know it, the reasonable grounds standard. Because school is mandatory, courts have refused to allow policies of random searches of all students, without individualized suspicion.6 In creating the reasonable grounds standard, courts try to assist teachers and administrators by establishing standards of enforcement that can be determined by reasonableness under all the circumstances rather than by requiring a technical or legal standard as would be used by a law enforcement officer in the street.
Changes in education law continue to give school officials broad authority to implement policies that are designed to keep campuses safe.7 School officials have been able to justify the reasonable grounds standard as well as the lack of individualized suspicion for searches at school because these are categorized as “special need,”8 such as random drug testing of student athletes9 or students participating in other extracurricular activities.10 What has been required in these “special needs” cases is a fact-specific balancing of the intrusion against the promotion of legitimate governmental interests.11
The test of reasonableness under all the circumstances likewise requires balancing the need for the search against the invasion of personal rights.12 A search of a student by a school official must be reasonably related to the objectives of the search and may not be excessively intrusive in light of the age and sex of the student and the nature of the infraction.13 Clearly, if a school policy prohibits the possession of a phone, a search for the phone would be warranted. However, that information alone may not be enough to authorize a search of the contents of that seized phone.
If a school does have valid possession of a student’s phone, it must ensure that reasonable grounds exist to search the contents of that phone, which would be permissible if the school official had reasonable grounds to believe that the cellphone contained information suggesting that the student is or was engaged in conduct that violated the law or rules of the school.14
In State of Texas v. Granville, out of the 7th Court of Appeals in Amarillo, a warrantless search of data in a smartphone was considered unreasonable. Granville had been arrested at his high school for a misdemeanor and booked into the county jail. Three hours after his arrest, a different officer than the one who arrested Granville went into the jail property room and, without a search warrant, looked through Granville’s phone for evidence connected to another, unrelated felony.15 The search was considered unreasonable because, while there was probable cause to believe that evidence may have been on the phone, the officer could have secured a warrant.16 As the Supreme Court did in Riley, the 7th Court of Appeals likened a person’s expected right of privacy in the contents of his or her cellphone to the expected right of privacy one would have in his or her home. In February 2014, the Texas Court of Criminal Appeals affirmed this judgment.17
The task now is to interpret these cases with respect to searches done not by a law enforcement officer but by a school official in a school setting. The standard of reasonableness under all the circumstances must apply to any search at school by a school administrator,18 and this same standard must be applied to a search of the contents of a cellphone seized at school by a school administrator. The administrator would balance the strength or weakness of the information received against the infraction by the student and the school’s need to discover the contents of the student’s phone at that point in time. The added factor to the administrator is in recognizing the Supreme Court’s emphasis on a person’s expected right of privacy.
For example, if a school administrator received information that a student was improperly texting during school, and the administrator felt the information was reasonably reliable, the school administrator would be permitted to search the content of the student’s phone for text messages and their times. However, under that scenario, the administrator would not be allowed to scroll through other parts of the student’s phone, such as pictures or emails. What if the student, when asked about the improper texting, admits to the violation? Would this eliminate the need for a search of the contents of his phone? Also, be aware that a person may have a reasonable and legitimate expectation of privacy in the contents of his or her phone, as in other situations. But an expectation of privacy might be lost if a student abandons his cellphone, lends it to others to use, or gives consent to search.19
If a school official, however, obtains information that indicates that a student’s phone contains information or evidence of a student’s illegal activity, especially off-campus illegal activity, it may be a good practice to turn the phone and the student over to a law enforcement officer for a full probable cause determination. If appropriate, an arrest and procurement of a search warrant could be obtained by the officer. If the administrator or the law enforcement officer felt that exigent circumstances or an immediate danger existed, a search of the contents would be permissible.20
The development of new technologies is a continuing process, as are policies and procedures in schools regarding these new technologies. The “reasonableness under all the circumstances” standard for school searches continues to apply to searches in schools by school officials. While cellphones bring new technology to the schools, the same rules of school searches continue to give guidance to school administrators regarding what they can and cannot do when it comes to the searching of cellphones and their contents. Even with the holding in Riley, it is doubtful that a school administrator, who has reasonable grounds to believe that a student’s cellphone contains information regarding a violation of a school rule, would need to procure a warrant.
NOTES
1. Riley v. California, No. 13–132, 573 U.S.___, Tex.Juv.Rep. Vol. 28 No. 3 14-3-9. On Writ of Certiorari to the Court of Appeal of California, Fourth Appellate District, Division One (6/25/2014).
2. Id. at Slip 21.
3. Id. at Slip 29.
4. New Jersey v. T.L.O., 469 U.S. 325 at 333, 105 S. Ct. 733; 83 L. Ed. 2d 720; 1985 U.S. LEXIS 41; 53 U.S.L.W. 4083 (1985).
5. In re Gault, 387 U.S. 1 (1967).
6. Anable v. Ford, 653 F.Supp. 22, 663 F.Supp. 149 (W.D. Ark. 1985).
7. Board of Education v. Earls, No. 01-332, Supreme Court of the United States, 122 S. Ct. 2559; 153 L. Ed. 2d 735; 2002 U.S. LEXIS 4882; 70 U.S.L.W. 4737; (June, 2002).
8. Ferguson v. City of Charleston, 532 U.S. 67, 79, 149 L. Ed. 2d 205, 121 S. Ct. 1281 (2001).
9. Vernonia School Dist. 47J v. Acton et ux., 515 U.S. 646, 651-53, 115 S.Ct. 2386, 132 L.Ed.2d 564 (1995).
10. Board of Education v. Earls, supra.
11. Id.
12. S.C. v. State of Connecticut, No. 02-9274, 382 F.3d 225; 2004 U.S. App. LEXIS 18834 (2nd Cir. 2004).
13. New Jersey v. T.L.O., supra.
14. Id.
15. State v. Granville, No. 07-11-0415-CR, 373 S.W.3d 218 (Tex.App.—Amarillo, 7/11/12).
16. Id.
17. Id.
18. New Jersey v. T.L.O., supra.
19. State v. Granville, supra.
20. Riley v. California, supra.
PAT GARZA is the associate judge of the 386th District Court of Bexar County and has been presiding over juvenile law cases in San Antonio for more than 24 years. He is a former adjunct professor of law at St. Mary’s University School of Law and is a Texas Board of Legal Specialization Juvenile Law Exam Commissioner. Garza is the editor of the Juvenile Law Reporter for the State Bar of Texas and is a life fellow of the Texas Bar Foundation. He is certified in juvenile law by the Texas Board of Legal Specialization.